Citation Nr: 1011207
Decision Date: 03/25/10 Archive Date: 04/07/10
DOCKET NO. 07-17 308A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Hartford,
Connecticut
THE ISSUES
1. Entitlement to an initial rating in excess of 50 percent
for posttraumatic stress disorder (PTSD).
2. Entitlement to a total disability rating based on
individual unemployability due to service-connected
disabilities (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Zawadzki, Associate Counsel
INTRODUCTION
The Veteran served on active duty from November 1965 to
November 1968.
This appeal to the Board of Veterans' Appeals (Board) arises
from a June 2006 rating decision in which the Department of
Veterans Affairs (VA) Regional Office (RO) in Hartford,
Connecticut granted service connection and assigned an
initial 50 percent rating for PTSD, effective January 30,
2006. In August 2006, the Veteran submitted additional
evidence in regard to his PTSD. In a March 2007 rating
decision, the RO continued the 50 percent rating for PTSD.
In a January 2009 rating decision, the RO granted a temporary
total rating based on hospitalization, effective from
November 26, 2008. A 50 percent evaluation was assigned from
February 1, 2009.
In November 2009, the Veteran testified before the
undersigned during a videoconference hearing. A transcript
of that hearing is of record.
Further review of the claims folder indicates that the
Veteran was initially represented by the State of Connecticut
Department of Veterans Affairs (as reflected in a June 2001
VA Form 21-22, Appointment of Veterans Service Organization
as Claimant's Representative). Later, the Veteran filed a VA
Form 21-22, appointing Veterans of the Vietnam War, Inc. as
his representative. Most recently, in November 2008, the
Veteran filed a VA Form 21-22 naming Disabled American
Veterans (DAV) as his representative. The Board recognizes
the change in representation.
Additionally, the Board notes that, subsequent to issuance of
the most recent supplemental statement of the case (SSOC) in
January 2009, additional medical evidence pertinent to the
claim for a higher rating for PTSD was associated with the
claims file. This evidence has not been reviewed by the RO
in the first instance and the Veteran has not waived such
review. See 38 C.F.R. § 20.1304 (2009). However, as the
claim is being remanded, the agency of original jurisdiction
(AOJ) will have the opportunity to review this evidence on
remand.
For the reasons set forth below, this appeal is being
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC. VA will notify the Veteran if further
action is required.
REMAND
The Board's review of the claims file reveals that further
action on the claim for an initial rating in excess of 50
percent for PTSD is warranted.
The Veteran last underwent VA examination to evaluate his
PTSD in April 2008. At that time, he stated that he had a
number of close friends from the service with whom he kept in
touch, and indicated that he had also developed friendships
from work. A mental status evaluation demonstrated mild
stress and a mildly flattened affect. Following examination,
the examiner diagnosed, on Axis I, chronic PTSD. While the
examiner described the Veteran's PTSD as mild, the examiner
also assigned a Global Assessment of Functioning (GAF) score
of 55, which is reflective of moderate symptoms or moderate
difficulty in social, occupational, or school functioning.
American Psychiatric Association: DIAGNOSTIC AND STATISTICAL
MANUAL OF MENTAL DISORDERS, 32 (4th Ed.) (1994) (DSM-IV).
[In any event, in this regard, the Board notes that the
examiner also explained that the GAF score of 55 reflected a
somewhat isolative, moderately passive lifestyle.]
Thereafter, in November 2008, the Veteran entered a six week
inpatient PTSD treatment program at the Northampton VA
Medical Center (VAMC). On admission, the Veteran described
himself as getting more depressed. The Axis I diagnoses were
PTSD and depression, not otherwise specified. A GAF score of
40 was assigned. A social work group note from January 2009,
during the Veteran's hospitalization, indicates that the
Veteran was not able to work due to his symptoms and that he
had limited socializing at home. A GAF score of 38 was
assigned.
Additionally, in June 2009, the Veteran underwent a two week
hospitalization at the Northampton VAMC. The discharge
summary included Axis I diagnoses of PTSD, chronic and
bipolar spectrum illness, depressed. A GAF score of 39 was
assigned. The Board notes that, according to the DSM-IV, GAF
scores ranging from 31 to 40 reflect some impairment in
reality testing or communication, or major impairment in
several areas, such as work or school, family relations,
judgment, thinking, or mood. Id.
During the November 2009 hearing, the Veteran testified that
he had one friend and that he only left the house on Mondays
to go to the Vet Center, unless his wife dragged him to the
store.
The foregoing medical evidence and testimony from the Veteran
appears to reflect a worsening of his PTSD since the April
2008 VA examination. Accordingly, the Board finds that he
should be afforded a new VA examination to evaluate his PTSD.
See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey
v. Brown, 6 Vet. App. 377, 381 (1994); & VAOPGCPREC 11-95
(1995) [which stipulate that a veteran is entitled to a new
VA examination where there is evidence (including his
statements) that the condition has worsened since the last
examination].
At the examination conducted pursuant to this Remand, the
examiner should, to the extent possible, distinguish symptoms
attributable to PTSD from those attributable to any other
psychiatric disability that is not service-connected, i.e.,
adjustment disorder, depression, and/or bipolar spectrum
illness. The Board points out that, if it is not medically
possible to distinguish the effects of service-connected and
nonservice-connected conditions, the reasonable doubt
doctrine mandates that all signs and symptoms be attributed
to the veteran's service-connected condition. See Mittleider
v. West, 11 Vet. App. 181 (1998).
In addition to the foregoing, review of the claims file
reflects that pertinent records have not been obtained. The
Board notes that, during the November 2009 hearing, the
Veteran reported that he was on Social Security medical
retirement due to a shoulder disability and emphysema. He
added that he had also told the Social Security
Administration (SSA) about his PTSD. While SSA records are
not controlling for VA determinations, they may be
"pertinent" to VA claims. See Collier v. Derwinski, 1 Vet.
App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363
(1992). Hence, when VA is put on notice of the existence of
SSA records, it must seek to obtain those records before
proceeding with the appeal. See Murincsak; see also Lind v.
Principi, 3 Vet. App. 493, 494 (1992). As the Veteran's SSA
records have not previously been associated with the claims
file and may be pertinent to the claim for a higher rating
for PTSD, these records should be requested.
Also, during the November 2009 hearing, the Veteran testified
that he was currently receiving treatment through the Norwich
Vet Center. Records of VA treatment currently associated
with the claims file reflect that the Veteran has received
ongoing treatment for PTSD from the Norwich Vet Center since
December 2005. While letters from the Veteran's counselors
at the Norwich Vet Center, dated in February 2006 and in
March 2008, have been associated with the claims file, the
only record of treatment from this facility associated with
the claims file is dated in January 2006.
Further, the record reflects that the Veteran received
inpatient treatment for PTSD at the Northampton VAMC from
November 2008 to January 2009 and in June 2009. While some
records from the hospitalization from November 2008 to
January 2009, including the November 2008 examination for
entrance into the inpatient PTSD program and the January 2009
discharge summary, have been associated with the claims file,
complete records from this inpatient treatment are not of
record. Similarly, while the discharge summary from the
Veteran's June 2009 inpatient treatment is also of record,
complete records of treatment from this hospitalization also
have not been associated with the claims file.
As records of VA treatment from the Norwich Vet Center, since
December 2005, and complete records from the Veteran's
inpatient treatment at the Northampton VAMC, from November
2008 to January 2009 and in June 2009, are potentially
pertinent to the appeal and within the control of VA, they
should be obtained and associated with the claims file.
Also, any ongoing treatment obtained at the Northampton VAMC
should be obtained and associated with the claims folder.
Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v.
Derwinski, 2 Vet. App. 611, 613 (1992).
As a final matter, the Board notes that, in a June 2009
rating decision, the RO denied the Veteran's claim for a
TDIU. In correspondence received in August 2009, the Veteran
indicated that he disagreed with the denial of his claim. In
correspondence also received in August 2009, the Veteran's
representative asserted that the Veteran's claim for a TDIU
was denied on the basis that the Veteran failed to report for
a VA examination; however, the Veteran was an inpatient at
the time of the scheduled VA examination. The representative
stated that, although the scheduler was advised that the
Veteran was an inpatient at the VAMC, the examination was not
rescheduled. Despite the August 2009 correspondence
expressing disagreement with the June 2009 rating decision,
the Veteran has not been furnished a statement of the case
(SOC) regarding entitlement to a TDIU.
By filing a timely notice of disagreement (NOD) with the
denial of this claim, the Veteran has initiated appellate
review on that issue. However, the AOJ has not issued an SOC
with respect to that claim. See 38 C.F.R. § 19.29; Manlincon
v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober,
10 Vet. App. 433, 436 (1997). Consequently, this matter must
be remanded for the issuance of an SOC. Id. The Board
emphasizes, however, that to obtain appellate review of any
issue not currently in appellate status, a perfected appeal
must be filed. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200,
20.201, 20.202.
Accordingly, the case is REMANDED for the following action:
1. The AMC/RO should contact the Veteran
and obtain the names and addresses of all
medical care providers, VA and non-VA,
who treated him for PTSD. Of particular
interest are records from the Norwich Vet
Center (since December 2005); complete
records from the Veteran's inpatient
treatment at the Northampton VAMC from
November 2008 to January 2009 and in June
2009; as well as any relevant ongoing
records from the Northampton VAMC since
June 2009. After the Veteran has signed
the appropriate releases, those records
should be obtained and associated with
the claims folder.
All attempts to procure records should be
documented in the file. If the AMC/RO
cannot obtain records identified by the
Veteran, a notation to that effect should
be inserted in the file. The Veteran and
his representative are to be notified of
unsuccessful efforts in this regard, in
order to allow the Veteran the
opportunity to obtain and submit those
records for VA review.
2. The AMC/RO should also obtain from
the SSA a copy of any decision (from that
agency) regarding the Veteran's claim for
disability benefits as well as copies of
all medical records used in any such
determination.
3. Thereafter, schedule the Veteran for
a VA examination to determine the nature
and extent of his service-connected PTSD.
The claims folder must be made available
to and be reviewed by the examiner in
conjunction with the examination. Any
testing deemed necessary should be
performed. All pertinent psychiatric
pathology should be noted in the
examination report. As part of the
evaluation, the examiner is requested to
assign a GAF score. The examiner should
also address the impact of the Veteran's
service-connected PTSD on his ability to
work. A complete rationale for all
opinions expressed must be provided.
In providing the above-noted findings,
the examiner should, to the extent
possible, distinguish the symptoms
attributable to service-connected PTSD
from those of any other diagnosed
psychiatric conditions (to include
adjustment disorder, depression, and/or
bipolar spectrum illness). However, if it
is not medically possible to do so, the
examiner should clearly so state,
indicating that the findings are with
respect to the Veteran's overall
psychiatric impairment.
4. The Veteran must be given adequate
notice of the date and place of any
requested examination. A copy of all
notifications, including the address
where the notice was sent must be
associated with the claims folder. The
Veteran is to be advised that failure to
report for a scheduled VA examination
without good cause shown may have adverse
effects on his claim.
5. After ensuring that the development
is complete, re-adjudicate the claim for
a higher rating for PTSD. If not fully
granted, issue a supplemental statement
of the case (SSOC) before returning the
claim to the Board, if otherwise in
order.
6. Issue a statement of the case (SOC)
addressing the issue of entitlement to a
TDIU. This issue should be returned to
the Board for further consideration only
if the Veteran perfects the appeal by
submitting a sufficient substantive
appeal.
No action is required of the Veteran until he is notified by
the agency of original jurisdiction. However, he is advised
that failure to report for any scheduled examination may
result in the denial of his claim. 38 C.F.R. § 3.655 (2009).
He has the right to submit additional evidence and argument
on the matter that the Board has remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims
(Court) for additional development or other appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
THERESA M. CATINO
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).